On a recent trip to London, I spoke with a retired justice of the Supreme Court of the United Kingdom who lamented that America, once the beacon of constitutional democracy, is no longer such since the January 6 assault on the Capitol and Donald Trump’s opening the floodgates of fear and violence to keep himself in power. I shared the lament.
How best to rectify this state of affairs? The legal system is about to work its magic on multiple fronts as Trump faces a dizzying array of federal and state charges, with more added this week by a Fulton County, Georgia, grand jury indicting him—and a slew of his allies—for a conspiracy to overturn the state’s vote for Joe Biden in the 2020 election.
But there always looms the question of prosecutorial discretion. Because a Justice Department special counsel, the Manhattan District Attorney, and an Atlanta-based prosecutor can bring the law down on Trump’s combed-over head, does that mean they should? It’s a fair question.
Prosecutorial zeal put the country through an extraordinarily wrenching period in the late 1990s when Independent Counsel Kenneth Starr and the GOP congress pursued Bill Clinton with Javert-like intensity over whether he lied in a civil proceeding about extramarital sex and his alleged lies that followed from there. However one feels about the Clinton impeachment and the Monica Lewinsky affair, it’s telling that Congress let the independent counsel statute expire rather than putting us all through that again. No one can have Starrs in their eyes—or Muellers—for that matter, about special counsels.
Some argue that prosecuting Trump is not worth it because it, too, would put the country through unnecessary agony. They say this is akin to the rationale for Gerald Ford’s 1974 blanket pardon for Richard Nixon—a move widely criticized at the time, which may have cost the Michigander the presidency in 1976. But in the nearly 50 years since then, the public mood has shifted, and we see the merit in what Ford did and the courage it took, considering that the easier path would have been to let Nixon pay for his many crimes. The John F. Kennedy Profile in Courage award was given to Ford by the John F. Kennedy Library 17 years after the fact—a measure of how much the conventional wisdom about the right thing to do can turn.
Some argue for similar leniency for Trump, including the Harvard professor and former Justice Department official Jack Goldsmith, who took up this cause in The New York Times. The gist of his case is that, although Trump is surely guilty, pursuing his January 6 crimes comes at a cost. I deeply admire Goldsmith and respect this point of view, but I think we’d be wrong to abide by it or the notions of others urging the prosecutors to drop their cases.
Let’s not idealize the Ford pardon. It, too, came at a cost. It sent a powerful signal then and now that there are two standards of justice in America. It wrought cynicism and may have enabled or at least encouraged other presidents to break the law. Would Trump have been Trump if Nixon had served time? It’s a counterfactual that can’t be answered. Plus, Trump’s alleged crimes make Watergate look like spitting on the sidewalk.
Goldsmith wisely concedes that the Trump prosecution “might be justified” and that the New Yorker is “ultimately responsible for this mammoth mess.”
So why not hold the former president accountable? We are not a banana republic if we prosecute a former leader who tries to shoot his way back in. We are a banana republic if we give him a pass.
While Americans tend to think of Special Counsel Jack Smith’s indictment along party lines, polls say that a majority think the indictment is “very serious” and conclude that “Trump should have been charged with a crime” in the case. Only 46 percent think the charges are “politically motivated.”
Yet, some conservative lawyers see a parade of horribles that will, as Goldsmith puts it, “probably inspire ever more aggressive tit-for-tat investigations in office by future Congresses and administrations of the opposing party to the detriment of sound government.”
It is equally tenable, though, that it will be a long time before any president attempts to overturn the certified results of an election by unlawful means. Whether a corrupt “deep state” runs the country may be a political opinion. Whether someone won an election after the proposition has been tested in 63 unsuccessful lawsuits is a fact.
Some fault bringing the case before the election, intimating that the decision could degrade American democracy.
Sure, the timing is not perfect. It would have been better had Attorney General Merrick Garland appointed a special counsel in March 2021 after the Senate confirmed him. The second impeachment of Trump had just failed. The Capitol still had the feel of an armed camp. An early start and all of this might have been resolved before the 2024 election cycle. The Fulton County, Georgia, prosecutor Fani Willis’s wide-ranging case shows what one can do with more time.
That said, Smith ought to win the cases against Trump. Goldsmith concedes that the Mar-a-Lago documents case is far less controversial and political than the January 6 prosecution. But there is no way that the documents case can be tried before the election, with Aileen Cannon, the federal district court judge in Florida, throwing roadblocks in the path of the prosecution; a million pages of discovery; hundreds of classified documents to be screened; and two co-defendants, along with other bit players with interests to be accommodated.
The January 6 indictment is so grave, so profound, that it’s hard to argue that it ought not to be pursued. Yes, it’s not a slam dunk, but it’s not a long shot, either. Concerns about Smith losing are overblown, and even if he were to lose on the insurrection-related charges, it’s better than declining to prosecute them as no big deal.
The bedrock of our jurisprudence is that no one is above the law. Should Trump be treated differently from anyone charged with serious crimes? This has never stopped us from prosecuting legislators, governors, mayors, and judges. Spiro Agnew was forced out of the White House in October 1973 owing to an influence scandal. The vice president’s resignation was a shock in a month of shocks amid the surprise Yom Kippur War, the Senate Watergate Committee report, and a nation in crisis. The sky did not fall.
Our ingenious founders never visualized that we might have a rogue president unleashing mayhem on the streets of the nation’s capital to cling to power he did not earn. The founders did conceive of circumstances that might make it necessary for a supermajority of the Senate to convict the president, remove him from office, and disqualify him from ever again holding a position of honor, trust, or profit. But, if he is to be prosecuted—and the Constitution contemplates just that—by whom is he to be charged other than the executive branch of government? One can defend the Justice Department rule that a sitting president cannot be prosecuted, but not prosecuting a former one strains credulity. We have had presidents live 20, 30, and 40 years after they’ve left the White House. One could grant them a lifetime of immunity from federal prosecution, but that seems ludicrous.
What’s more, the fear of violence ought not to deter prosecution. Alarmist forecasts of a Trump prosecution triggering street violence have not been realized. When Manhattan District Attorney Alvin Bragg indicted Trump for slipping hush money to a porn star, Trump predicted that blood would flow in the streets. It didn‘t. And when Representative Marjorie Taylor Greene flew to Gotham to rev up the mob, almost no one was there. She stayed two minutes and went home. Nothing happened.
Mitch McConnell sadly could have taken care of the problem in the closing days of the Trump administration. In February 2021, the Senate Republican Leader directly blamed Trump for inciting the January 6 riot but voted in Trump’s impeachment proceeding to acquit him anyway.
In a speech on the Senate floor shortly after Trump was cleared in a 57-43 vote, McConnell sharply criticized his former ally, saying the rioters had been “fed wild falsehoods by the most powerful man on Earth. Because he was angry he’d lost an election.”
“Former President Trump’s actions that preceded the riot were a disgraceful, disgraceful dereliction of duty,” added McConnell. “Trump is practically and morally responsible for provoking the events of the day.”
But McConnell—who, as Senate majority leader, rejected calls by Senate Democrats for a speedy trial during Trump’s final days in office—said Trump was constitutionally ineligible for conviction since the punishment is removal, and by then, Trump was out of office. McConnell claimed that a verdict in the Senate before Biden’s inauguration had been impossible.
McConnell agreed that “impeachment was never meant to be the final forum for American justice” and punted. Trump could be subject to criminal prosecution in the future, McConnell hinted.
“We have a criminal justice system in this country,” he said. “We have civil litigation. And former presidents are not immune from being held accountable by either one.” McConnell then flew down to Mar-a-Lago to make up with the former president.
Ironically, the Senate could have ended the entire controversy that day. Had Republicans voted to convict Trump of “high crimes and misdemeanors,” and there was precedent in our history for impeaching persons even after they left office, Trump would have been disqualified.
But we’re left with a Trump mess, not as we wish it were, but as it is. Despite the messiness to come, there is no choice but to bring these prosecutions on. Let an American jury decide what laws the president broke and let an American judge impose the appropriate punishment.
Terrible consequences? I think not. I predict that the prosecution of Trump will have a cathartic effect in a deeply divided country. In The Grass Harp, Truman Capote said: “A man who doesn’t dream is like a man who doesn’t sweat. He stores up a lot of poison.”
